Family Law Mediation

From Clicklaw Wikibooks

Mediation is a process in which the two sides of a dispute work with a neutral third partyA person named in a court proceeding or joined to a proceeding who is neither the claimant nor the respondent. A third party may be joined to a proceeding where the respondent believes that the person has or shares some responsibility for the cause of action. See "action," "cause of action" and "party.", a mediator, to reach an agreement that deals with all or some of the issues in dispute. Mediation is not couples counselling; it is a legal process intended to help resolve a dispute without going to court. Mediators are usually trained professionals, and lawyers who are family law mediators are specially accredited by the Law Society of British Columbia.

This section provides a brief overview of mediationA dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.", a description of the mediation process, some tips for making the most of mediation, and an introduction to the mediation services offered through the provincial government.

Introduction

At its heart, mediation is a cooperative, managed process of negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute resolving that dispute, usually requiring mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements.". Both parties must be willing to work together and each must be prepared to give a little and take a little. Because the mediation process is based on a cooperative effort to achieve a common goal, a settlementA resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer." of the legal issues, there is usually a lot less of the bitterness and acrimony that can accompany litigation. Mediation is also much, much cheaper than litigation.

A couple can start mediation as an alternative to court or as a settlement process after a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. has started. The result of a successful process of mediation is usually a separation agreementA contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements.". If litigation has started, a settlement can be recorded as either a separation agreement or as an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." that the parties agree the court will make, called a consent orderAn order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make.. If a couple are married, a consent order may make sense since they'll require an order for their divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." anyway.

Normally, just the people involved in the dispute attend mediation with their mediator, but they can bring their lawyers along as as well. The mediator's job is to facilitate the parties' negotiations, to provide a neutral third-partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." perspective, and to help ensure that any settlement is reasonably fair to all concerned, including the children of the relationship. As a mediator myself, I often appreciate having the lawyers present; it makes my job easier if I can rely on the lawyers to explain the law or to point out why a particular position is ill-advised.

The mediator has no stake in how the mediation turns out, and should have no bias in favour of either party and no special connection with either party. The mediator's position as a neutral third party is probably the mediator's most important role. It allows the mediator to be absolutely frank with each of the parties, and to point out when a party's expectations for an issue are unrealistic. Someone involved in mediation is a lot more likely to accept that their position is unreasonable when a mediator says so, rather than the other party.

The mediation process

The first step is for each party to hire a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.". Even if you don't intend on hiring the lawyer for the whole mediation process or have the lawyer present at the mediation, it can be critical to meet with a lawyer before the process begins to get some proper legal advice about the law that applies to your situation, and a sense of the general range of likely outcomes and the options available to you.

If you plan on retaining the lawyer for the mediation process, the lawyer will have the names of three or four mediators with whom they prefers to work. Mediate BC, formerly the BC Mediation Roster Society, maintains a list of many, but not all, of the people who are trained as mediators in this province. Their website can help you find a mediator and offers more information about the mediation process. Many family law lawyers, who may or may not be members of Mediate BC, are also accredited family law mediators; lawyers who work as mediators will usually say so in their advertising.

Getting organized

The mediator will usually meet with the parties separately before the actual mediation begins. This is because mediators, like arbitrators, parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." coordinators, and other Family Dispute Resolution Professionals, now have a positive duty to screen parties to determine if family violence is present and if it is, to ensure that the mediation process is safe for all concerned. Mediators also need to refer the victim of family violence to whatever resources may be available.

In addition to screening for family violence, the pre-mediation meeting also gives the mediator a chance to get to know the parties a bit, and for the parties to discuss with the mediator any concerns or questions they might have.

Next, the parties and the mediator will agree to a schedule of meetings, the ground rules for these meetings, and the objects or goals of the process. Sometimes the decisions as to ground rules and goals are left to the parties themselves; it is their process, after all, not that of the mediator. If the parties are using lawyers, this step may be left out since ground rules aren't required or because the lawyers will be able to agree on the ground rules between themselves. Whether there are multiple meetings or not depends largely on the parties and the number of issues outstanding. Often a single half- or full-day meeting will produce a settlement.

Exchanging information

The parties will then begin to assemble the documents required to explain their separate financial situations. Often this will consist only of completing a financial statement. A financial statement is a useful court form that sets out each party's income and expenses, and assets and debts.

Supporting documents will have to be gathered as well, which will usually consist of things like:

  1. income tax returns,
  2. paystubs or other proofEvidence which establishes or tends to establish the truth of a fact; also, the conclusion of a logical argument. See "evidence" and "premises." of income,
  3. propertySomething which can be owned. See "chattels" and "real property." assessments or appraisals, and,
  4. corporate financial statements and tax returns.

It is critical that both parties are honest and forthcoming about their finances; nothing will damage the mediation process more than the discovery that someone is hiding information or acting in bad faithIntentionally misleading someone else, whether by doing or not doing something; acting in a manner contrary to one's actual intention; failing to act honestly and openly. Also known by the Latin phrase ''male fides''. See ''bona fides''..

These documents will then be exchanged between the parties in preparation for the first mediation session. Based on the documents disclosed and the issues on the table, additional documentation may be required to be produced and exchanged. A party who is self-employed may have to produce corporate financial statements and corporate tax returns in addition to the usual materials. The extent of any additional materials will depend entirely on the circumstances of each couple and their children.

As well, the parties may need further additional input and information from people such as child psychologists, accountants, and the like. If these people are needed to help settle matters, there may be an additional waiting period while these experts conduct their investigations and prepare their reports.

Exchanging briefs

Where the parties are represented by lawyers, the mediator may ask the lawyers to prepare mediation briefs. Mediation briefs are summaries of the parties' relationship and each party's position and, when a position is legally complex or technical, an explanation of the law or facts supporting that position. The lawyers will give copies of their briefs to each other and to the mediator ahead of the first mediation session.

Mediating the dispute

Once all the information, reports, and briefs have been gathered and exchanged, and everybody has had a chance to digest everything, the parties, the lawyers and the mediator will meet at one or more mediation sessions. The mediator will first welcome everyone to the table, and ask the parties to sign a mediation agreement before anything else happens. The mediation agreement sets out the terms of the mediation sessions, requires the parties not to use the discussions held during mediation in any litigation, and describes the terms on which the mediator will be paid.

After the mediation agreement has been signed, each mediator will have their own preferred way of doing things. Most will ask someone to provide a general overview of the relationship and describe what exactly is at issue. Each party will have the opportunity to state their position on things. If lawyers are being used, they will inevitably do most of the talking, but the parties themselves will have ample opportunity to speak their minds... and you really should, it's your dispute!

Once this initial exchange of positions is complete, the mediator may keep everyone in the same room or may split the parties into separate rooms. If the parties are kept together, the mediator will press on and work on the problem, issue by issue. The mediator will keep some control over how the discussion flows, tamp the emotions down when things get heated, and keep everyone focused on their interests and the law rather than their emotions and the grievances of the past. If the parties are split into separate rooms, the mediator will alternate working with each party and will shuttle between each of the rooms. You may hear people describe this style of mediation as shuttle mediation.

Assuming the mediation process is successful, the mediator will often prepare a list describing how each issue has been resolved, called minutes of settlementA document setting out the essential terms of an agreement reached between two or more parties to a court proceeding, produced after negotiations and signed by the parties and their lawyers. Minutes of settlement are normally used as a guide to the more complete terms of a final order to be made with the consent of the parties and are often attached to that order as a schedule. See "consent order," "family law agreements," "litigant" and "order.". The minutes are usually rather informal and are meant to record the bare bones of the settlement in the expectation that a more complete document, like a separation agreement or a consent order, will be prepared in the future. The parties and sometimes their lawyers will be asked to sign the minutes to acknowledge the settlement that was reached.

Formalizing the settlement

The final stage involves the putting the terms of the agreement into more formal language in a legal document that both parties, or, depending on the type of document, their lawyers will sign. Typically, a settlement will be recorded as a separation agreement or, if there is an existing court proceeding or the parties need to get divorced, an order that the parties agree the court should make.

If a party changes their mind before the separation agreement or consent order is filed, the minutes of settlement can be enforced in court as evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." of the deal reached between the parties. In fact, in certain circumstances the mediator's notes alone may stand as proof of the parties' agreement. As long as it is plain what has been agreed to and that the intentions of the parties were finally settled, the minutes or the mediator's notes can be used as evidence of a bindingIn law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent." agreement.

Note that if you are relying on a mediated settlement in court, it is important that the settlement be conclusive and leaving nothing else for further negotiation or confirmation. In the 2005 British Columbia Supreme Court case of S.A.A. v. P.W.J.A., 2005 BCSC 603, the court held that the parties couldn't rely on an agreement that was "subject to confirmation" as a final, binding agreement. In that caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.", the agreement was subject to the wife producing financial information which, when produced, did not confirm the information provided at mediation.

Tips for successful mediation

In mediation, as in all other forms of negotiation, the goal is to produce a fair agreement in an efficient and cooperative way. There are lots of things you can do that will hinder this process, and other things you can do that will help. The following are a few tips on how to make mediation work for you.

Remember that the more you argue about a particular position of yours, the more you wind up being stuck with that position. Many people find that after they've argued a particular point to death, they're stuck with it because they can't back down without losing face. Try to focus on interests rather than on positions, and to always ask yourself "Why not?" when you hear what the other side has to say.

One of the most important skills you can bring to your mediation session is the ability to actively listen to what the other side is saying. Active listening involves paying close attention to what the other side is saying, and restating their position to ensure that you know what the other side means and to ensure that the other side recognizes that you're hearing what they is saying. Phrases like "What I hear you saying is..." and "If I understand you correctly, what you're saying is..." can be extremely helpful. At the same time, you must also take some care in how you choose to express yourself. Instead of saying "You did..." or "You're a...," try something like "When you did that I felt..." or "I feel that..." This may all seem a bit flaky, but believe it or not it works.

You must be able to talk directly about a problem in an assertive, direct manner. Talk about the issues; don't skirt around them, no matter how uncomfortable or awkward you might feel. Take care in how you express yourself, but when you're in a private session with the mediator, don't mince words.

Things to do

The following points boil down to just a few central ideas: respect yourself and the other side; be flexible and avoid taking absolute positions; and, be honest and open. When you go into the mediation session, try to have a few options prepared, a few other alternatives that you might be happy with, rather than a single fixed, rigid goal.

  • Be honest. Trust is essential to the mediation process.
  • Be empathetic. Use phrases that indicate you understand and respect how the other party is feeling and thinking, like "I understand how you're feeling..." or "I appreciate the effort you've put into this..."
  • Ask for a break when you're feeling too wound up or upset to continue, rather than abandoning the session.
  • Dress comfortably and be prompt.
  • If you disagree with something, say so. You must respect, and express, your own thoughts, opinions and feelings.
  • Bring the documents you were asked to bring. If you don't, matters will only be delayed and the other side may be irritated by the inconvenience.
  • Watch your body language! Making disgusted grunts, rolling your eyes, or slamming your fist on the table won't help anything.

Things not to do

Suspicion and dishonesty will damage the mediation process, sometimes beyond repair. If the mediator doesn't believe you and the other party doesn't believe you, it might be impossible to arrive at a negotiated settlement. Likewise, bitterness, jealousy and resentment can also be triggers that undermine each party's faith in the other and make resolution by a judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal. at a trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." inevitable.

  • Try to avoid letting your emotions get tangled up with your analysis of the problem at hand.
  • Don't hide information, financial or otherwise, on the assumption that the other party won't find out. They usually do, and if they do the process is likely at an end.
  • Don't raise your voice or make comments that are hurtful.
  • Don't interrupt. Wait until each person has stopped speaking before you interject, no matter how upset you might feel with what they is saying.
  • Negotiations are stressful, but don't use drugs or alcohol to calm your nerves. Drugs and alcohol will impair your judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment." and reduce your ability to be objective and bargain in your own best interests.
  • Don't feel that you must give an instant answerIn law, response to an allegation of fact or to a claim. Usually refers to documents which reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply." when you can't. Take a few moments or a few minutes to compose your replyIn law, an answer or rebuttal to a claim made or a defence raised by the other party to court proceeding or legal dispute. See "action," "claim," "defence" and "rebut."; no one will begrudge a considered response.
  • Don't make personal attacks or threats.
  • Don't play on the other person's sense of guilt or otherwise be emotionally manipulative.

Government mediation services

The provincial government offers mediation for family law disputes through the Family Mediation Practicum Project and its successor the Regional Mentoring Program, both of which are operated by Mediate BC. There are also family justice counsellors with the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction.", and they work in Family Justice Centres across BC. Other agencies and organizations may provide mediation services, however make sure that they can help with family law disputes before trying to get help.

Regional Mentoring Program

Mediate BC's Regional Mentoring Program was introduced in April 2012 and pairs a highly qualified mentor mediator with a mediator in training to mediate family disputes. The mediators provide legal information, and also provide support in developing options to resolve disputes, including property division.

To reach Mediate BC's family mediation services about this program call:

Phone: 604-684-1300 ext. 23
Toll-free: 1-855-660-8406

Family justice counsellors

Mediation is available from family justice counsellors through those Provincial Court registries that are designated as Family Justice Centres. Family justice counsellors are fully trained mediators, certified by Family Mediation Canada, who work with separated parents to assist in resolving disputes over the care of children, child supportMoney paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses., and spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship.. Family justice counsellors can't deal with property issues and they usually can't help with support when someone's income is not straightforward.

Clicklaw's website includes a current list of Family Justice Centres.

Resources and links

Legislation

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